In What Kind of Case Will Mediation Fail?

While we mediators want to believe that we can handle any situation, certainly we recognize cases where we can expect mediation to fail.

• If one of you is unwilling to present all asset documentation, or is hiding any assets. Mediation requires cooperation and honesty. If one of you feels that the other is hiding something, mediation is not going to be able to continue to the next topic until that one is cleared up.
• If one of you has a goal of "winning." Mediation's goal is to arrive at agreements that both of you feel are fair. No one wins in a divorce. It should be a goal that no one loses, either.
• If one of you is unable to state what you need and negotiate while your spouse is sitting next to you. The mediator should provide an environment where you feel safe - both physically and emotionally - so that you can freely discuss the issues without fearing retaliation. Sometimes, physically or emotionally abused people are best supported with an attorney. If there is a restraining order in effect, you cannot mediate together in the same room.
• If one of you simply cannot make decisions or is unwilling to take responsibility for your decisions. An underlying principle of mediation is self-determination: the decisions belong to you. If you are emotionally unable to speak for yourself and make your own decisions, mediation might not work. An option is to have your attorney or therapist or another family member attend the mediation sessions with you.

In fact, mediation is quite effective in situations where you might think otherwise. For example, if there is a lot of unrestrained anger, mediation is a much better alternative to using attorneys to litigate. Litigation tends to increase the anger, the threats, the attacks, while mediation tends to suppress them. The mediator might manage the process by meeting with each of you separately.

If a couple is already in a heated battle through their attorneys, then totally switching over to mediation - midstream - is very effective in putting a halt to the aggression and helping the couple work together to resolve the issues more peacefully and more quickly. I find these to be the easiest cases to settle through mediation.

The negotiation skills of each of you do not have to be equal. It is the mediator's responsibility to balance the negotiating and to protect each of you from being overpowered by the other.